To establish first-degree rape by threat of forcible compulsion, the threat must be an express communication of the intent to harm the other person. Additionally, the surrounding circumstances to establish forcible compulsion by threat varies according to the respective parties’ ages and prior history.

The trial court convicted defendant of first-degree rape, second-degree rape, and first-degree sexual abuse. Defendant appealed his sentence because the trial court improperly denied his motion for judgment of acquittal. At issue on appeal was whether defendant’s conduct at the time of the alleged rape constituted “forcible compulsion,” as required by ORS 163.305(2). In this case, ORS 163.305(2) includes the threat of forcible compulsion. Thus, the Court of Appeals explored whether defendant’s actions, as defined by Webster’s Third New Int’l Dictionary, created a threat, ant thereby forcible compulsion. A threat equates to the express communication of intent to harm. The Court held that a threat sufficient to create forcible compulsion varies according to the respective parties’ ages and history between them. However, defendant’s prior forcible or violent acts were too far removed from the victim’s childhood and circumstances so different at the time of the alleged rape, that the only threat to be inferred resulted from the current act. At the time of the alleged rape, defendant’s actions neither physically nor through the threat of violence, constituted rape. First-degree rape reversed; remanded for resentencing; otherwise affirmed.